Citation Nr: 1039983
Decision Date: 10/25/10 Archive Date: 11/01/10
DOCKET NO. 06-32 497 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to service connection for chronic left ear
hearing loss disability.
2. Entitlement to an initial compensable disability evaluation
for the Veteran's right ear hearing loss disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The Veteran (appellant) had active service from July 1947 to
September 1947 and from October 1947 to October 1951.
This matter came before the Board of Veterans' Appeals (Board) on
appeal from an October 2005 rating decision of the Cleveland,
Ohio, Regional Office Center (RO) which, in pertinent part,
established service connection for right ear hearing loss
disability; assigned a noncompensable evaluation for that
disability; and denied service connection for left ear hearing
loss disability.
In May 2009, the Veteran submitted a Motion to Advance on the
Docket. In May 2009, the Board granted the Veteran's motion. In
May 2009, the Board remanded this claim for additional
development. The Board is satisfied that there was substantial
compliance with its remand directives. See Stegall v. West, 11
Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47
(1999). The case has been returned to the Board and is ready for
further review.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The Veteran has a current left ear hearing loss disability.
2. Left ear hearing loss was not manifested within one year of
active service, and is not shown to have developed as a result of
an established event, injury, or disease during active service.
3. Audiometric examinations correspond to a Level V hearing loss
for the right ear; and is noncompensable.
CONCLUSIONS OF LAW
1. Left ear hearing loss was not incurred in or aggravated by
service, and a sensorineural hearing loss may not be presumed to
have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.307, 3.309, 3.385 (2010).
2. The criteria for a compensable evaluation for right ear
hearing loss have not been met. 38 U.S.C.A. § 1155, 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.383, 3.385, 4.85,
4.86, 4.87 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2010).
Proper notice from VA must inform the claimant of any information
and medical or lay evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide. Quartuccio v.
Principi, 16 Vet. App. 183 (2002). This notice must be provided
prior to an initial unfavorable decision on a claim by the RO.
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
Veteran status; (2) existence of a disability; (3) a connection
between the Veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further,
this notice must include information that a disability rating and
an effective date for the award of benefits will be assigned if
service connection is awarded. Id. at 486.
VCAA notice errors are presumed prejudicial unless VA shows that
the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error, VA
must show (1) that any defect was cured by actual knowledge on
the part of the claimant; (2) that a reasonable person could be
expected to understand from the notice what was needed; or, (3)
that a benefit could not have been awarded as a matter of law.
See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).
The Veteran's claim for his right ear hearing loss arises from
his disagreement with the initial evaluation following the grant
of service connection. Courts have held that once service
connection is granted the claim is substantiated, additional
notice is not required and any defect in the notice is not
prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir.
2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore,
no further notice is needed under VCAA on that issue.
As to the issue of service connection for a left ear disorder,
the duty to notify was satisfied by way of a letter sent to the
Veteran in April 2005 that fully addressed all notice elements
and was sent prior to the initial RO decision in this matter.
The letter informed him of what evidence was required to
substantiate the claim and of his and VA's respective duties for
obtaining evidence. A letter was also sent to him in June 2010.
There is no allegation from the Veteran that he has any evidence
in his possession that is needed for full and fair adjudication
of this claim. Under these circumstances, the Board finds that
the notification requirements of the VCAA have been satisfied as
to both timing and content.
With respect to the Dingess requirements, in June 2010, the RO
provided the Veteran with notice of what type of information and
evidence was needed to establish a disability rating, as well as
notice of the type of evidence necessary to establish an
effective date. With that letter, the RO effectively satisfied
the remaining notice requirements with respect to the issue on
appeal.
Therefore, adequate notice was provided to the Veteran prior to
the transfer and certification of his case to the Board and
complied with the requirements of 38 U.S.C. § 5103(a) and 38
C.F.R. § 3.159(b).
As to the duty to assist, the Board finds that all necessary
development has been accomplished, and therefore appellate review
may proceed without prejudice to the Veteran. See Bernard v.
Brown, 4 Vet. App. 384 (1993).
First, the RO has obtained VA outpatient treatment records, and
private records. The Veteran was also afforded a VA examination
in connection with his claim. See 38 C.F.R. § 3.159(c)(4)
(2010). To that end, when VA undertakes to provide a VA
examination or obtain a VA opinion, it must ensure that the
examination or opinion is adequate. Barr v. Nicholson, 21 Vet.
App. 303, 312 (2007). The Board finds that the VA examination
obtained in this case is more than adequate. The examination
provided adequate basis for making a determination in this claim.
Accordingly, the Board finds that VA's duty to assist with
respect to obtaining a VA examination or opinion with respect to
the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4).
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence, no
further notice or assistance is required to fulfill VA's duty to
assist in the development of the claim. Smith v. Gober, 14 Vet.
App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz
v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Service Connection for Chronic Left Ear Hearing Loss.
In order to establish service connection for a claimed
disability, the facts must demonstrate that a disease or injury
resulting in current disability was incurred in active military
service or, if pre-existing active service, was aggravated
therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303
(2010). Service connection may be granted for any disease
diagnosed after discharge when all the evidence, including that
pertinent to service, establishes that the disease was incurred
in service. 38 C.F.R. § 3.303(d) (2010). In addition, certain
chronic diseases, including sensorineural hearing loss, may be
presumed to have been incurred or aggravated during service if
they become disabling to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West
2002); 38 C.F.R. §§ 3.307, 3.309 (2010).
For a showing of chronic disease in service, there is required a
combination of manifestations sufficient to identify the disease
entity, and sufficient observation to establish chronicity at the
time, as distinguished from merely isolated findings or a
diagnosis including the word "chronic." Continuity of
symptomatology is required where the condition noted during
service is not, in fact, shown to be chronic or where the
diagnosis of chronicity may be legitimately questioned. If the
fact of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support the
claim. 38 C.F.R. § 3.303(b) (2010).
Service connection requires competent evidence showing: (1) the
existence of a present disability; (2) in-service incurrence or
aggravation of a disease or injury; and (3) a causal relationship
between the present disability and the disease or injury incurred
or aggravated during service. Shedden v. Principi, 381 F.3d
1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet.
App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498
(1995).
For purposes of a hearing loss claim, impaired hearing will be
considered a disability for VA purposes when the auditory
threshold in any of the frequencies 500, 1,000, 2,000, 3,000,
4,000 Hertz is 40 decibels or greater, or when the auditory
thresholds for at least three of the frequencies 500, 1,000,
2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or when
speech recognition scores using the Maryland CNC Test are less
than 94 percent. See 38 C.F.R. § 3.385 (2009); see also Meedel
v. Shinseki, 23 Vet. App. 277, 283 (2010).
Section 3.385 of Title 38, Code of Federal Regulations does not
preclude service connection for a current hearing disability
where hearing was within normal limits on audiometric testing at
separation from service. Hensley v. Brown, 5 Vet. App. 155, 159
(1993). When audiometric test results at the Veteran's
separation from service do not meet the regulatory requirements
for establishing a "disability" at that time, the Veteran may
nevertheless establish service connection for a current hearing
disability by submitting competent evidence that the current
disability is causally related to service. Id. at 160. The
threshold for normal hearing is zero decibels to 20 decibels and
higher threshold levels indicate some degree of hearing loss.
Id. at 157.
In this case, the Veteran is competent to report a history of
noise exposure during service. See 38 C.F.R. § 3.159(a)(2). His
DD Form 214 shows his MOS to be automobile mechanic helper. Thus
exposure to noise is presumed. The evidence shows that he has
current left ear hearing loss disability as defined by 38 C.F.R.
§ 3.385 (2010). Nevertheless, the preponderance of the evidence
is against finding a nexus between the post service left ear
hearing loss and service.
The Board has reviewed all the evidence in the Veteran's claims
file. Although the Board has an obligation to provide adequate
reasons and bases supporting this decision, there is no
requirement that the evidence submitted by the Veteran or
obtained on his behalf be discussed in detail. Rather, the
Board's analysis below will focus specifically on what evidence
is needed to substantiate the claims and what the evidence in the
claims file shows, or fails to show, with respect to the claims.
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
The Veteran claimed service connection for left ear defective
hearing based on exposure to acoustic trauma in service. His
service records show no complaint, diagnosis or treatment for
left ear hearing loss and that at service separation in September
1951, his hearing was 15/15, bilaterally.
After service, private records show that the Veteran was seen for
hearing loss in April 2003. He reported that he last had his
hearing tested in service in 1952. An audiogram showed defective
hearing in the left ear.
The Board notes that the Veteran was afforded a VA examination in
August 2005 in connection with his claim for service connection
for left ear hearing loss. The examiner noted that he had
reviewed the claims file. The Veteran reported increasing
difficulty hearing. He stated that he had noise exposure in
service due to depth charges and guns. He stated that he did not
have any occupational or recreational noise exposure. On the
audiological evaluation pure tone thresholds, in decibels, were
as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
LEFT
110+
115+
115+
115+
115+
Speech audiometry revealed that speech recognition ability could
not be measured since the Veteran did not have measurable hearing
in the left ear and could not hear speech stimuli at equipment
levels.
The examiner stated that test results showed no measurable
hearing in the left ear. The Veteran reported that he had never
been seen by ENT regarding his left ear hearing loss. The
examiner stated that the hearing loss in the left ear is not
consistent with noise exposure or noise trauma. She reported
that it is not likely that the military noise exposure alone
caused the current hearing loss for the left ear.
Based on the evidence of record, the Board finds that service
connection for left ear hearing loss is not warranted. Although
the Veteran is currently diagnosed with left ear hearing loss,
the overall weight of the evidence is against finding a link
between the disability and noise exposure during service. The VA
examiner opined that hearing loss is not likely due to noise
exposure in service. This finding was reached after examining
the service treatment records, the claims file and evaluating the
Veteran. The opinion stands uncontradicted in the file.
The Board has considered the lay statements submitted in support
of the Veteran's claim. The U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) held that lay evidence is one
type of evidence that must be considered, and competent lay
evidence can be sufficient in and of itself. The Board, however,
retains the discretion to make credibility determinations and
otherwise weigh the evidence submitted, including lay evidence.
See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
This would include weighing the absence of contemporary medical
evidence against lay statements.
In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the
Federal Circuit determined that lay evidence can be competent and
sufficient to establish a diagnosis of a condition when (1) a
layperson is competent to identify the medical condition (noting
that sometimes the layperson will be competent to identify the
condition where the condition is simple, for example difficulty
hearing, and sometimes not, for example, a form of cancer), (2)
the layperson is reporting a contemporaneous medical diagnosis,
or (3) lay testimony describing symptoms at the time supports a
later diagnosis by a medical professional. The relevance of lay
evidence is not limited to the third situation, but extends to
the first two as well. Whether lay evidence is competent and
sufficient in a particular case is a factual issue.
Once evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno v.
Brown, 6 Vet. App. 465, 470 (1992) (distinguishing between
competency ("a legal concept determining whether testimony may be
heard and considered") and credibility ("a factual determination
going to the probative value of the evidence to be made after the
evidence has been admitted")). See Barr v. Nicholson, 21 Vet.
App. 303 (2007).
In Robinson v. Shinseki, the Federal Circuit held that, in some
cases, lay evidence will be competent and credible evidence of
etiology. Whether lay evidence is competent in a particular case
is a question of fact to be decided by the Board in the first
instance. The Federal Circuit set forth a two-step analysis to
evaluate the competency of lay evidence. The Board must first
determine whether the disability is the type of injury for which
lay evidence is competent evidence. If so, the Board must weigh
that evidence against the other evidence of record-including, if
the Board so chooses, the fact that the Veteran has not provided
any in-service record documenting his claimed injury-to determine
whether to grant service connection. See Robinson v. Shinseki,
312 Fed. Appx. 336 (2009) (confirming that, "in some cases, lay
evidence will be competent and credible evidence of etiology").
The Board observes that this Federal Circuit decision is
nonprecedential. See Bethea v. Derwinski, 252, 254 (1992) [a
non-precedential Court decision may be cited "for any
persuasiveness or reasoning it contains"]. The Board finds that
if Bethea applies to Court decisions, it is logical to apply the
guidance set forth therein to those decisions of a superior
tribunal, the Federal Circuit.
Here, the Board finds that, while the Veteran has asserted that
his left ear hearing loss is the result of exposure to noise in
service he has not demonstrated the medical knowledge required to
establish an etiological nexus between his hearing loss and in-
service noise exposure. See Espiritu v. Derwinski, 2 Vet. App.
492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent
medical evidence means evidence provided by a person who is
qualified through education, training, or experience to offer
medical diagnoses, statements, or opinions]. Therefore, although
the statements of the Veteran in support of his claim have been
given full consideration by the Board, they are not considered
competent medical evidence and do not serve to establish a
medical nexus between the claimed disorder and the Veteran's
period of service.
Further, to the extent that the Veteran's statements are offered
as evidence of continuity of symptomatology, the Board
acknowledges that lay evidence concerning continuity of symptoms
after service, if credible, is ultimately competent, regardless
of the lack of contemporaneous medical evidence. See Buchanan v.
Nicholson, supra. As noted, in adjudicating his claim, the Board
must evaluate the Veteran's credibility. See Washington v.
Nicholson, 19 Vet. App. 362, 368- 69 (2005). In rendering a
decision on appeal, the Board must analyze the credibility and
probative value of the evidence, account for the evidence which
it finds to be persuasive or unpersuasive, and provide the
reasons for its rejection of any material evidence favorable to
the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40
(1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). As
noted, competency of evidence differs from weight and
credibility. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno
v. Brown, supra; see also Cartwright v. Derwinski, 2 Vet. App.
24, 25 (1991) ("although interest may affect the credibility of
testimony, it does not affect competency to testify").
While the Board acknowledges that the Veteran is competent to
provide evidence of his own experiences, the fact that the
Veteran's treatment records do not reflect a diagnosis of hearing
loss until over 50 years after service weighs heavily against the
claim he now makes that he has had problems ever since service.
The Board is not holding that corroboration is required. Rather,
the Board finds his assertions to be less credible than the
negative contemporaneous records. The Board notes that symptoms,
not treatment, are the essence of any evidence of continuity of
symptomatology. However, with respect to a merits review, the
lack of evidence of treatment may bear on the credibility of the
evidence of continuity. As such, the Board finds that the
probative evidence is against the claim based on continuity of
symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.
Cir. 2000) (lengthy period of absence of medical complaints for
condition can be considered as a factor in resolving claim); see
also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming
Board's denial of service connection where Veteran failed to
account for lengthy time period between service and initial
symptoms of disability).
The preponderance of the evidence is against finding that the
Veteran has left ear hearing loss which is etiologically related
to active service. The appeal is accordingly denied. In making
this determination, the Board has considered the provisions of 38
U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is
not such a state of equipoise of positive and negative evidence
to otherwise grant the Veteran's claim.
Entitlement to an Initial Compensable Disability Evaluation for
Right Ear Hearing Loss.
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder. 38
U.S.C.A. § 1155. Separate diagnostic codes identify the various
disabilities. Id. It is necessary to evaluate the disability
from the point of view of the Veteran working or seeking work,
38 C.F.R. § 4.2, and to resolve any doubt regarding the extent
of the disability in the Veteran's favor. 38 C.F.R. § 4.3.
Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
In considering the severity of a disability, it is essential to
trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2,
4.41. Consideration of the whole-recorded history is necessary
so that a rating may accurately reflect the elements of
disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1
Vet. App. 282 (1991).
While the regulations require review of the recorded history of a
disability by the adjudicator to ensure a more accurate
evaluation, the regulations do not give past medical reports
precedence over the current medical findings. Where an increase
in the disability rating is at issue, the present level of the
Veteran's disability is the primary concern. Francisco v. Brown,
7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for
adjudicating an increased rating claim is on the evidence
establishing the state of the disability from the time period one
year before the claim was filed until a final decision is issued.
Hart v. Mansfield, No. 05-2424, 2007 WL 4098218 (Vet. App.
Nov. 19, 2007). Thus, staged ratings may be assigned if the
severity of the disability changes during the relevant rating
period.
In cases where the original rating assigned is appealed, as is
the case here, consideration must be given to whether the Veteran
deserves a higher rating at any point during the pendency of the
claim. Fenderson v. West, 12 Vet. App. 119 (1999).
The Veteran has been service-connected for hearing loss in the
right ear and he is totally deaf in his left ear. He is not
service-connected for left ear hearing loss. The Veteran's
service-connected right ear hearing loss is currently assigned a
noncompensable disability rating. The Veteran seeks a higher
initial rating.
A rating for hearing loss is determined by a mechanical
application of the rating schedule to the numeric designations
assigned based on audiometric test results. See Lendenmann v.
Principi, 3 Vet. App. 345 (1992).
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent. The basic method of rating
hearing loss involves audiological test results of organic
impairment of hearing acuity as measured by the results of
controlled speech discrimination tests (Maryland CNC), together
with the average hearing threshold level as measured by pure tone
audiometry tests in the frequencies of 1000, 2000, 3000, and 4000
Hertz. To evaluate the degree of disability of service-connected
hearing loss, the rating schedule establishes eleven auditory
acuity levels ranging from numeric level I for essentially normal
acuity, through numeric level XI for profound deafness. See 38
C.F.R. § 4.85 (2010).
The current rating criteria include an alternate method of rating
exceptional patterns of hearing as defined in 38 C.F.R. § 4.86
(puretone threshold of 55 decibels or more at 1000, 2000, 3000,
and 4000 Hertz; puretone threshold of 30 decibels or less at 1000
Hertz and 70 decibels or more at 2000 Hertz).
Pursuant to regulation, if impaired hearing is service-connected
in only one ear, in order to determine the percentage evaluation
from Table VII, the nonservice- connected ear will be assigned a
Roman Numeral designation for hearing impairment of I, subject to
the provisions of § 3.383 of this chapter. 38 C.F.R. § 4.85(f)
(2010).
The Board notes that the claims file contains a VA audiological
report from August 2005. This audiological summary report of
examination for organic hearing loss reflected puretone
thresholds as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
25
60
60
70
LEFT
110+
115+
115+
115+
115+
Speech audiometry revealed speech recognition ability of 72
percent in the right ear. Percentage for the left ear could not
be calculated.
The Board has reviewed the Veteran's recent VA treatment records.
However, none of the recent treatment records contain audiometric
findings. A private audiogram dated in April 2003 shows
defective hearing; however the findings have little probative
value in evaluating the degree of disability. The results of
Maryland CNC are utilized by VA as a method of verifying the
presence of a current hearing loss disability as defined by 38
C.F.R. § 3.385, or they are be used to evaluate and determine the
appropriate disability rating for service-connected hearing loss
under the applicable rating criteria. In this regard, 38 C.F.R.
§ 4.85 (2010) provides that a VA examination for hearing
impairment must include a Maryland CNC speech discrimination
test. Here it does not appear that the private evaluator
followed these criteria. Given this uncertainty, the Board has
no choice but to afford the exam minimal probative value. In
contrast, the Board clearly sees the Veteran's August 2005 VA
examiner tested at each of the relevant frequencies and measured
the Veteran's speech recognition according to the Maryland CNC
test. The Board finds this exam is the most probative piece of
evidence for measuring the Veteran's hearing loss in accordance
with 38 C.F.R. § 4.85.
As noted above, the Veteran is service-connected for hearing loss
in only one ear. In such cases, the disability is evaluated as a
paired organ. Specifically, where there is deafness compensable
to a degree of 10 percent or more in one ear as a result of
service-connected disability and deafness in the other ear as the
result of nonservice-connected disability that is not the result
of the Veteran's own willful misconduct, the rate of compensation
shall be paid as if the combination of the disabilities was the
result of service-connected disability. See 38 U.S.C.A. §
1160(a)(3) (West); see also VAOPGCPREC 32-97.
The implementing regulation regarding hearing loss in one ear
provides that a Veteran must have a service-connected hearing
impairment of 10 percent or more, and a hearing impairment in the
nonservice-connected ear that meets the criteria at 38 C.F.R. §
3.385 before both ears may be considered in deriving the level of
disability. See 38 C.F.R. § 3.383(a)(3) (2010).
In determining if the service-connected ear has a hearing
impairment of 10 percent or more the nonservice-connected ear
must initially be given a value of Roman Numeral I. See 38
C.F.R. § 4.85(f). The service-connected ear must then either
have a numeric value of either X or XI, as determined by either
Table VI, or Table VIA, in order to considered as compensable.
See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII
(combination of Level I and either Level X or Level XI results in
a 10 percent rating). As the following discussion will show, the
evidence of record does not demonstrate that the Veteran had a
compensable disability rating for his service-connected right ear
at any time during the pendency of his claim.
A review of the August 2005 audiometric study, and using the
speech discrimination scores from the audiogram, correlates to
Level V hearing in the left right. See 38 C.F.R. § 4.85, Table
VI (2010). Although the Veteran's hearing impairment in the left
ear does satisfy the criteria as a hearing disability under 38
C.F.R. § 3.385, the hearing impairment in the Veteran's right ear
is not to a compensable degree. Therefore, the hearing
impairment in the nonservice-connected left ear is not for
consideration in evaluating the service-connected disability.
See 38 U.S.C.A. § 1160(a)(3); 38 C.F.R. § 3.383(a)(3). The
results of the August 2005 examination do not warrant a
compensable disability rating.
The Board has also considered the provisions under 38 C.F.R. §
4.86 (2010) for exceptional patterns of hearing impairment. The
Veteran does not have a puretone threshold of 55 decibels or more
at the designated frequencies such as to require application of
38 C.F.R. § 4.86(a). The August 2005 audiogram does not
demonstrate the requisite 30-decibel loss at 1,000 Hertz and 70
decibel or more loss at 2,000 Hertz to warrant consideration of
38 C.F.R. § 4.86(b). Thus the provision is not for consideration
in this case.
Finally, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the
United States Court of Appeals for Veterans Claims (Court) noted
that VA had revised its hearing examination worksheets to include
the effect of the Veteran's hearing impairment disability on
occupational functioning and daily activities. See Revised
Disability Examination Worksheets, Fast Letter 07-10 (Dep't of
Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. §
4.10 (2010). The Court also noted, however, that even if an
audiologist's description of the functional effects of the
Veteran's hearing disability was somehow defective, the Veteran
bears the burden of demonstrating any prejudice caused by a
deficiency in the examination.
In this case, the VA examiner of August 2005 noted the only
effects on the Veteran's daily life were his complaint of
difficulty hearing. He said on his substantive appeal that his
hearing loss continued to worsen since service. The Veteran has
not offered any discussion other than that his hearing has
decreased. He was given the opportunity to provide additional
evidence in that regard through his lay statements. He has not
argued that there was any prejudice caused by any lack of
documentation of functional impairment.
While the Board is sympathetic to the difficulties the Veteran
experiences as a result of his disability, his claim primarily
hinges on a mechanical application of specifically defined
regulatory standards. The Board is bound by the very precise
nature of the laws governing evaluations of hearing loss
disability.
The Board has considered the doctrine of reasonable doubt, but
finds that the record does not provide an approximate balance of
negative and positive evidence on the merits. Therefore, the
Board is unable to identify a reasonable basis for granting a
compensable evaluation for the Veteran's hearing impairment of
the right ear at any time during the appeal period. Gilbert v.
Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b)
(West 2002); 38 C.F.R. § 3.102 (2010).
In a recent case, the Court clarified the analytical steps
necessary to determine whether referral for extraschedular
consideration is warranted. See Thun v. Peake, 22 Vet. App. 111
(2008). First, the RO or the Board must determine whether the
evidence presents such an exceptional disability picture that the
available schedular evaluations for that service-connected
disability are inadequate. Second, if the schedular evaluation
does not contemplate the Veteran's level of disability and
symptomatology and is found inadequate, the RO or Board must
determine whether the claimant's exceptional disability picture
exhibits other related factors such as those provided by the
regulation as "governing norms." Third, if the rating schedule
is inadequate to evaluate a Veteran's disability picture and that
picture has attendant thereto related factors such as marked
interference with employment or frequent periods of
hospitalization, then the case must be referred to the Under
Secretary for Benefits or the Director of the Compensation and
Pension Service to determine whether, to accord justice, the
Veteran's disability picture requires the assignment of an
extraschedular rating.
The Board finds that there is no basis for referral for
consideration of an extra-schedular rating in this case. 38
C.F.R. § 3.321(b)(1) (2010). The Veteran has not presented any
evidence that his particular service-connected hearing impairment
disability of the right ear results in a unique disability that
is not addressed by the rating criteria. Specifically, there is
no evidence of frequent hospitalization or marked interference
with employment that would suggest that the Veteran is not
adequately compensated by the regular schedular standards. He
has not identified any interference in his daily life other than
difficulty in hearing. There is no evidence of any interference
with employment. Thus, there is no basis for referral of the
case for consideration of an extraschedular disability
evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008);
see also Bagwell v. Brown, 9 Vet. App. 337 (1996).
Finally, although the Veteran has submitted evidence of a medical
disability, and made a claim for the highest rating possible, he
has not submitted evidence of unemployability, or claimed to be
unemployable; therefore, the question of entitlement to a total
disability rating based on individual unemployability due to
service-connected disabilities (TDIU rating) has not been raised.
See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v.
Principi, 251 F.3d 1378 (Fed. Cir. 2001).
ORDER
Service connection for chronic left ear hearing loss disability
is denied.
An initial compensable disability evaluation for the Veteran's
right ear hearing loss disability is denied.
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs